婚姻中「兒童不與雙親分離」之權利與實踐──以兒童權利公約第9條倡導修法之行動記錄

The Right and Practice of “Children Are Not Separated from Their Parents” in Transnational Marriage: Action Record for Advocating Amendments under Article 9 of the Convention on the Rights of the Child

兒童權利公約（Convention on the Rights of the Child）第9條規定：締約國應確保「兒童不與雙親分離」之權利。為求落實「兒童權利公約」，總統公布「兒童權利公約施行法」，要求各級政府機關應依公約規定進行法規檢視。臺灣社會有相當比例之跨國婚姻，但相關移民類、兩岸類之法令規範，未必契合上述兒童權利公約第9條之規定，筆者從而與相關領域學者共同提出多項修法建議，目前已進入修法程序者包括：壹、外籍配偶依親居留對象增加其在臺之未成年子女。貳、新增會面交往、撫育事實為外籍／中國大陸配偶離婚後得准予繼續居留之事由。參、獲緩刑宣告者，可例外不廢止永久居留許可。肆、放寬國人繼親收養中國大陸地區人民為養子女之限制。未來應持續研議者包括：廢止居留許可事由之合理性、剝奪外籍配偶居留權益之程序應回歸司法審查等，期能使我國於國境管理及兒童人權之間，取得更適切的平衡點。

According to the Convention on the Rights of the Child (CRC), article 9: States Parties shall ensure that a child shall not be separated from his or her parents against their will.In order to implement the “Convention on the Rights of the Child”, the President promulgated the “Implementation Act of the Convention on the Rights of the Child”, requiring government agencies at all levels to conduct regulatory review in accordance with all provisions of the CRC.There is a considerable proportion of transnational marriages in Taiwan, but the relevant immigration and cross-strait (between Taiwan and the Mainland China) laws and regulations do not necessarily comply with the provisions of CRC, Article 9. The author has jointly proposed a number of amendments with scholars in related fields, the amendments which has entered the revision process are as following:1. Foreign spouses will be able to apply residence if there are their minor children in Taiwan.2. Foreign and China spouseswill be allowed to continuetheir residenceafter divorce if they need to raise or visit their minor children in Taiwan.3.The permanent residence permit may not be abolished if the probation is announced.4. Relax the restrictions on the adoption of the children of China spouses.In the future, the continuous issues include: the rationality of abolition of theresidence permit, the procedure of depriving foreign spouse’s residency rights should be returned to judicial review, etc., which will enable the policy to achieve a more appropriate balance between national security and children’s rights in Taiwan.